Nunes Memo: An Analysis

In last week’s Queens Jewish Link there were six letters to the editor, five of which related to columns I had written. I have no problem with people writing to the paper to disagree with my positions. I appreciate the feedback. I think it is important to hear both sides of an issue. In the words of former President George W. Bush, “Bring them on.”

My lack of response to the letters is not due to agreement with their positions, but because I do not want to be bogged down with a back-and-forth dialogue with four different people. I am moving forward with my next article.

On Friday, February 2, the House Permanent Select Committee on Intelligence released the majority (Republican) memorandum (Nunes memo).

The reactions to the Nunes memo were as expected. The diehard Trumpians thought this was a bombshell that should derail all investigations. The president claimed that it vindicated him. The majority believed that either it was not credible, nor significant, or has no effect on the Mueller investigation.

At the time of my writing this article, the minority memorandum had not yet been released. Thus, there is only the Nunes memo, a one-sided view, with no ability to determine whether the claims have a factual basis. It is like a court deciding an appeal based on the appellant’s (person who lost in the lower court) brief without looking at the underlying record of the court below or the respondent’s (the person who won in the lower court) brief.

The bottom line is that it is important not to be distracted by the noise coming out from the president and his allies

The problem we will face even after the release of the Democratic committee members’ response is that we may be stuck with dueling interpretations of underlying facts without the ability to see the facts.

For example, was the Steele dossier so significant that in its absence no surveillance warrant would have been requested or given? Did the government mislead the FISA (United States Foreign Intelligence Surveillance) Court by omitting material facts in the FISA application concerning the dossier and Steele, Fusion GPS, and the associate deputy attorney general’s wife? These answers cannot be made without examining the documents submitted to the court in support of the application.

The FBI implies there was more information that was presented to the court than the Nunes memo infers. The FBI stated that “with regard to the House Intelligence Committee’s memorandum, the FBI was provided a limited opportunity to review this memo the day before the committee voted to release it. As expressed during our initial review, we have grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy” (FBI Statement January 31, 2018). Thus, the FBI is disputing the Nunes memo’s conclusions.

Even in the absence of access to the underlying documents, there are some conclusions in the memo that can be disputed. For example, contrary to the Nunes memo, someone’s paying for information does not make the information incredible as a matter of law. Payment only relates to the weight of the evidence and not its admissibility.

Some of the best evidence is paid for. For instance, insurance companies will hire someone to watch and then videotape a person who claims they are disabled. The fact that the tape was paid for by the insurance company does not change the fact that the video shows that the person is engaging in conduct inconsistent with their claimed disability.

The memo also refers to the Strzok/Lisa Page texts to show bias. They ignore other texts that indicated that Strzok wanted the FBI to look at additional Clinton e-mails right before the election. There is also a dispute as to the meaning of the texts the memo refers to. Also, the memo claims that Strzok/Lisa Page had a meeting with Deputy Director McCabe, which has been denied, to discuss an insurance policy against Trump’s election.

The memo does not mention about any court action taken against the FBI or others concerning the alleged misconduct during or after the application was made.

It is important to look at the statutes, which I will summarize. To apply for a FISA warrant it must be signed off by more and higher levels of individuals in the FBI and the Department of Justice than a non-FISA warrant. Also, with a FISA application, the government must prove probable cause and that the information cannot be obtained by normal investigative techniques. The target must be an agent of a foreign power, with the caveat that a person cannot be considered an agent of a foreign power if the claim that the person is an agent is based solely on conduct protected by the First Amendment (freedom of speech).

As it relates to the renewal of the FISA warrant concerning Carter Page, which is the issue in the Nunes memo, there are three specifically relevant statutes.

There is an obligation on the party that has obtained the FISA warrant to notify the court of any misstatements or omission of material fact, Rule 13, United States Foreign Surveillance Court Rules of Procedure. “The FBI takes seriously its obligations to the FISA Court and its compliance with procedures overseen by career professionals in the Department of Justice and the FBI. We are committed to working with the appropriate oversight entities to ensure the continuing integrity of the FISA process” (FBI Statement issued January 31).

In determining whether probable cause exists, a judge may consider past activities of the target, as well as facts and circumstances relating to current or future activities of the target. An order issued under this section may approve an electronic surveillance for the period necessary to achieve its purpose, or for 90 days, whichever is less. Extensions of the order may be granted on the same basis as an original order, which includes considering past, present, or facts relating to future activities of the target. Thus, the FISA Court had the right to consider information that it reviewed when it granted the initial and any prior application for the FISA warrant as to Carter Page. This initial and other prior information is not discussed in the Nunes memo.

The statutory requirements make the Nunes memo’s claim of a significant reliance upon the Steele dossier to obtain an extension of the FISA order problematic

The bottom line is that it is important not to be distracted by the noise coming out from the president and his allies. They are afraid of what Robert Mueller will find and conclude. Let the investigation play out and let the chips fall where they may.

Warren S. Hecht is a local attorney. He can be reached at whecht@aol.com